Citation Nr: 0513761
Decision Date: 05/19/05 Archive Date: 06/01/05
DOCKET NO. 02-19 015 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Phoenix,
Arizona
THE ISSUES
1. Entitlement to a compensable rating for bilateral hearing
loss.
2. Entitlement to a rating in excess of 50 percent for post
traumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Arizona Department of
Veteran's Services
ATTORNEY FOR THE BOARD
Dan Brook, Associate Counsel
INTRODUCTION
The appellant is a veteran who served on active duty from
December 1966 to November 1969. This matter comes before the
Board of Veterans' Appeals (Board) on appeal from a January
2001 rating decision that granted service connection for
bilateral hearing loss (rated noncompensable) and an August
2002 rating decision that granted service connection for PTSD
(rated 50 percent). Both decisions were issued by the
Phoenix, Arizona Regional Office (RO) of the Department of
Veterans Affairs (VA). In November 2003, the Board remanded
the matter of the rating for hearing loss for notice of the
Veterans Claims Assistance Act of 2000 (VCAA) and for
development of evidence. (The matter of the rating for PTSD
had not yet then been fully developed for Board review.)
FINDINGS OF FACT
1. Throughout the appeal period the veteran is not shown to
have had hearing acuity worse than Level I in either ear.
2. The veteran's PTSD is manifested by occupational and
social impairment with reduced reliability and productivity;
occupational and social impairment with deficiencies in most
areas is not shown at any time during the appeal period.
CONCLUSIONS OF LAW
1. A compensable rating for bilateral hearing loss is not
warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R.
§§ 3.102, 4.85, Diagnostic Code (Code) 6100, 4.86 (2004).
2. A rating in excess of 50 percent for PTSD is not
warranted. 38 U.S.C.A.
§§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Code 9411
(2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. VCAA
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA). See 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West
2002). Regulations implementing the VCAA are at 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a). The VCAA applies in
the instant case. The Board finds that the mandates of the
VCAA are met.
The veteran has been advised of VA's duties to notify and
assist in the development of both of his claims. The initial
January 2001 rating decision for hearing loss, an August 2002
statement of the case (SOC), a December 2002 supplemental SOC
and a May 2004 supplemental SOC notified the veteran of
applicable laws and regulations, of what the evidence showed,
and why a compensable rating was not awarded for hearing
loss. The initial rating decision for PTSD in August 2002,
an April 2004 (SOC) and a June 2004 supplemental SOC notified
the veteran of applicable laws and regulations, of what the
evidence showed, and why a rating higher than 50 percent was
not awarded for PTSD. Regarding timing of notice, an August
2002 SOC and a subsequent May 2004 supplemental SOC properly
provided notice as to the "downstream" issue of an
increased rating for hearing loss, and an April 2004 SOC
properly provided notice as to the "downstream" issue of an
increased rating for PTSD. See VAOPGCPREC 8-2003 (Dec.
2003).
Regarding notice content, while the veteran was not advised
verbatim to submit everything he had pertinent to his claims,
a February 2002 letter asked him to submit or identify any
additional evidence concerning his PTSD claim and the January
2004 letter asked him to submit or identify any additional
evidence concerning his hearing loss claim. This was
equivalent to advising the veteran to submit everything he
had pertinent to the claim. As noted, the rating decisions
and SOCs cited above provided the critical information as to
the bases for the ratings assigned, and of what the evidence
showed. The veteran has had ample opportunity to respond,
and is not prejudiced by any notice deficiency along the way.
There is no further duty to notify. See Quartuccio v.
Principi, 16 Vet. App. 183 (2002).
Regarding the duty to assist, VA has obtained the veteran's
service medical records and records of relevant medical
treatment and asked him to submit or identify (for VA to
obtain) any additional medical evidence that would support
his claim. VA specifically arranged for hearing examinations
in November 2000 and January 2004 and a PTSD examination in
July 2002. The veteran has not identified any pertinent
evidence that is outstanding. No further assistance to the
veteran is required. He is not prejudiced by the Board's
proceeding with appellate review.
II. Factual Background
The veteran's military occupational specialty was
communication center specialist. The RO has apparently
conceded that he engaged in combat. Service connection for
hearing loss (rated noncompensable) was granted effective May
3, 2000. Service connection for PTSD (rated 50 percent) was
granted effective August 8, 2001.
On VA examination in November 2000 audiometry revealed that
puretone thresholds (in decibels) were:
HERTZ
1000
2000
3000
4000
RIGHT
10
05
45
65
LEFT
15
05
15
50
The examination found a bilateral high frequency moderate
degree of sensorineural hearing loss, worse in the right ear.
The average puretone thresholds were 31 decibels, right ear,
and 21 decibels, left ear. Speech recognition was 100
percent in the right ear and 100 percent in the left ear. In
recounting his history, the veteran indicated that he noticed
some difficulty in hearing clearly when there was background
noise or in a crowd of people.
A July 2001 Veteran's Center intake shows a diagnosis of PTSD
and a Global Assessment of Functioning (GAF) score of 60.
A private hearing test from March 2002 was not certified for
rating purposes and no
speech recognition scores were reported. The examiner found
a mild hearing loss for speech sounds in both ears, a
moderate hearing loss for high pitched sounds in the left ear
and a moderately severe hearing loss for high pitched sounds
in the right ear.
A July 2002 VA psychological evaluation shows a diagnosis of
mild to moderate chronic PTSD with a recent exacerbation.
The veteran reported that he did not take medication for
PTSD. He had been initially referred for PTSD group sessions
at a Vet Center. After an initial visit he did not return.
The veteran's described symptoms that included intrusive
recollections and recurrent nightmares, intense anxiety when
seeing something that reminded him of Vietnam trauma,
persistent avoidance of stimuli associated with his wartime
stressors, emotional numbing, lack of interest in things,
separation from other people around him, difficulty falling
and staying asleep, outbursts of anger, a startle response
when hearing a loud noise like gunfire, depressed mood, flat
affect, some compulsive behavior, reduced impulse control and
motivation and suicidal ideation. He appeared cleanly
groomed and well dressed, his judgment appeared to be good
and his insight into his life situation was deemed to be
partial. There was no endorsement or evidence of paranoid
ideation; no sign of psychosis and thought processes were
goal directed, logical and coherent.
The GAF score was 55. The examiner estimated that
occupational and social impairment was 50 percent, with
reduced reliability and productivity due to symptoms of
flattened affect, difficulty in understanding complex
commands, impaired judgment, disturbances of motivation and
mood and difficulty in establishing and maintaining effective
work and social relationships.
On VA examination in January 2004, audiometry revealed that
puretone thresholds
(in decibels) were:
1000
2000
3000
4000
RIGHT
15
10
60
70
LEFT
15
10
25
55
The average puretone thresholds were 39 decibels, right ear,
and 26 decibels, left ear. Speech recognition was 96 percent
in the right ear and 100 percent in the left ear. The
diagnosis was bilateral high frequency sensorineural hearing
loss.
A private hearing test from March 2004 was not certified for
rating purposes and
no speech recognition scores were reported. The examiner
found that there was a mild hearing loss for speech sounds in
both ears, a moderate hearing loss for high pitched sounds in
the left ear and a severe hearing loss for high pitch sounds
in the right ear.
III. Laws and Regulations
Disability ratings are based on average impairment in earning
capacity resulting from a particular disability, and are
determined by comparing symptoms shown with criteria in VA's
Schedule for Rating Disabilities (Rating Schedule).
38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
Because the instant appeal is from the initial rating
assigned with the grant of service connection, the
possibility of "staged" ratings for separate periods during
the appeal period, based on the facts found, must be
considered. See Fenderson v. West, 12 Vet. App. 119 (1999).
However, the Board finds that staged ratings are not
warranted here, since the rating assigned for the entire
period reflects the greatest degree of impairment shown at
any time.
Where there is a question as to which of two evaluations
apply, the higher evaluation will be assigned if the
disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will be
assigned. 38 C.F.R. § 4.7.
Ratings for bilateral hearing loss range from noncompensable
to 100 percent based on organic impairment of hearing acuity
as measured by the results of speech discrimination tests,
together with the average hearing threshold levels as
measured by pure tone audiometry tests in the frequencies
1,000, 2,000, 3,000, and 4,000 cycles per second. To
evaluate the degree of disability for bilateral hearing loss,
the Rating Schedule establishes eleven (11) auditory acuity
levels, designated from level I for essentially normal acuity
through level XI for profound deafness. 38 C.F.R. § 4.85,
Code 6100.
When evaluating a mental disorder, the rating agency shall
consider the frequency, severity, and duration of psychiatric
symptoms, the length of remissions, and the veteran's
capacity for adjustment during periods of remission. The
rating agency shall assign an evaluation based upon all the
evidence of record that bears on occupational and social
impairment, rather than solely upon the examiner's assessment
of the level of disability at the moment of the examination.
When evaluating the level of disability from a mental
disorder, the rating agency will consider the extent of
social impairment, but shall not assign an evaluation solely
on the basis of social impairment. 38 C.F.R. § 4.126.
The General Rating Formula for Mental Disorders, effective
from November 7, 1996, provides for a 70 percent rating when
there is occupational and social impairment, with
deficiencies in most areas, such as work, school, family
relations, judgment, thinking, or mood, due to such symptoms
as: suicidal ideation; obsessional rituals which interfere
with routine activities; speech intermittently illogical,
obscure, or irrelevant; near-continuous panic or depression
affecting the ability to function independently,
appropriately and effectively; impaired impulse control (such
as unprovoked irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including
work or a worklike setting); inability to establish and
maintain effective relationships. A higher (100 percent)
rating is available for more severe manifestations. 38 C.F.R.
§ 4.130, Code 9411.
A 50 percent rating is assigned when there is occupational
and social impairment with reduced reliability and
productivity due to such symptoms as: flattened affect;
circumstantial, circumlocutory, or stereotyped speech; panic
attacks more than once a week; difficulty in understanding
complex commands; impairment of short- and long-term memory
(e.g., retention of only highly learned material, forgetting
to complete tasks); impaired judgment; impaired abstract
thinking; disturbances of motivation and mood; and difficulty
in establishing and maintaining effective work and social
relationships. Id.
IV. Analysis
A. Hearing Loss
Disability ratings for hearing impairment are derived by a
mechanical application of VA's Rating Schedule to the numeric
designations assigned after audiometric evaluations are
rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992).
Here, mechanical application of the Rating Schedule to the
January 2004 VA audiometry (the official testing showing the
greatest degree of hearing impairment) results in a
noncompensable rating. The average puretone threshold for
the veteran's right ear was 39 decibels, and speech
discrimination was 96 percent. Under 38 C.F.R. § 4.85, Table
VI, such hearing acuity is characterized as level I. The
left ear average puretone threshold was 26 decibels, with 100
percent speech discrimination, resulting in hearing acuity
also characterized as Level I. Under 38 C.F.R. § 4.85, Table
VII, where there is Level I hearing in the better ear and
Level I hearing in the poorer ear, a 0 percent rating is to
be assigned (under Code 6100). While the rating criteria
cannot be applied to the private examination results of
record, puretone thresholds on those examinations were
similar to those on VA examinations. The RO has applied the
Rating Schedule accurately, and there is no schedular basis
for a higher rating. An unusual pattern of hearing as
defined in 38 C.F.R. § 4.86 is not shown; hence, a rating
based on puretone thresholds alone is not in order.
Audiometric testing results are dispositive evidence in a
claim regarding the schedular rating of hearing loss
disability. Consequently, a schedular compensable rating for
bilateral hearing loss is not warranted.
The Board has considered whether consideration of an
extraschedular rating is indicated. However, nothing in the
record reflects factors necessary for extraschedular rating
such as marked interference with employability or frequent
hospitalizations due to hearing loss. 38 C.F.R. § 3.321.
Consequently, referral for extraschedular consideration is
not warranted.
PTSD
The evidence of record does not suggest the level of
occupational and social impairment necessary to establish a
rating in excess of 50 percent. The July 2002 VA examination
specifically estimated that the veteran's complete cluster of
symptoms resulted in a level of occupational and social
impairment of 50 percent, with reduced reliability and
productivity, and there is no evidence of record that
supports a higher level of impairment or indicates that the
veteran's PTSD has worsened since July 2002. While this
examination did show self-reported suicidal ideation, a
symptom that can be indicative of a higher (70 percent) level
of impairment, the examiner did not find that the veteran's
complete set of symptoms, including the suicidal ideation,
produced occupational and social impairment with deficiencies
in most areas, a finding necessary for assignment of a 70
percent rating. The symptoms clinically observed, e.g.,
flattened affect, disturbances of motivation, etc. all
correspond to the criteria for a 50 percent rating.
Significantly, the PTSD has apparently not required
treatment. The veteran takes no medication for PTSD
symptoms. He was referred for group sessions at a Vet
Center, but did not return after an initial visit (apparently
due to inconvenience). Notably also, the examiner opined
that the veteran's PTSD was mild to moderate, a finding that
is consistent with a no more than 50 percent rating.
Symptoms warranting a 70 percent rating (or approximating
such a level of impairment) are not shown. Consequently, a
rating in excess of 50 percent for PTSD is not warranted.
ORDER
A compensable rating for bilateral hearing loss is denied.
A rating in excess of 50 percent for PTSD is denied.
____________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs